ILLINOIS POLLUTION CONTROL BOARD
December 5, 2002
VOGUE TYRE & RUBBER COMPANY,
Petitioner,
v.
OFFICE OF STATE FIRE MARSHAL,
Respondent.
)
)
)
)
)
)
)
)
)
PCB 95-78
(UST Fund)
OPINION AND ORDER OF THE BOARD (by G.T. Girard):
Vogue Tyre & Rubber Company (Vogue Tyre) is seeking review of a determination by
the Office of State Fire Marshal (OSFM) that two tanks removed by Vogue Tyre from 1401 Golf
Road, Skokie, Cook County are ineligible for reimbursement from the leaking underground
storage tank fund (UST fund). On September 13, 2002, the OSFM filed a motion for summary
judgment (Mot.). On November 6, 2002, Vogue Tyre filed a response to the motion (Resp.). On
November 22, 2002, OSFM filed a motion for leave to file a reply and a reply (Reply), which the
Board hereby grants. For the reasons discussed below the Board finds that there are no issues of
material fact and the motion for summary judgment is granted. The Board affirms the OSFM’s
February 1, 1995 denial of eligibility.
FACTS
On March 6, 1995, Vogue Tyre filed a petition for review (Pet.) of an OSFM
determination that Vogue Tyre was ineligible to seek payment for corrective action for the clean
up of a leaking underground storage tank. The Board accepted this matter for hearing on March
9, 1995.
See
Vogue Tyre & Rubber Company v. OSFM, PCB 95-78 (Mar. 9, 1995). This
proceeding was previously stayed pending the resolution of the insurance claims related to this
proceeding.
See
Vogue Tyre & Rubber Company v. OSFM, PCB 95-78 (Jan. 18, 1996). Vogue
Tyre is no longer asking that the proceeding be stayed. On March 16 1995, OSFM filed the
record on appeal (R.).
The Vogue Tyre site contained four underground storage tanks that were registered with
OSFM on May 6, 1986. R. at 1. Tanks 3 and 4 were removed in 1993 and a release was
reported to Illinois Emergency Management Agency (IEMA). R. at 13-25, 38. Those two tanks
are not at issue in this appeal.
Tanks 1 and 2 were deregistered by an administrative order issued by OSFM on
February 17, 1993. R. at 6. The administrative order indicates that the tanks could no longer be
registered because the tanks were removed prior to September 27, 1987.
Id
. The administrative
order also contained direction on what steps should be taken to appeal the order.
Id
. Vogue Tyre
did not appeal that order.
2
Tanks 1 and 2 were removed
1
prior to the release reported on December 7, 1994. R. at
56. On December 27, 1994, Vogue Tyre filed an application for reimbursement with the OSFM.
R. at 88-90. On February 1, 1995, OSFM denied access to the UST fund because Tanks 1 and 2
were not registered and were therefore ineligible for access to the UST Fund. R. at 82-84.
REGULATORY FRAMEWORK
Illinois reimburses owners and operators of leaking underground storage tanks for
cleanup costs through the Underground Storage Tank Program and the UST Fund.
See
415 ILCS
5/57 (2000). Those seeking reimbursement from the UST fund must establish that they are
eligible to access the UST fund under the criteria set forth in Section 57.9 of the Act (415 ILCS
5/57.9 (2000)). One of those criteria is that the owner of the tank registered the tank and paid the
fees in accordance with the Gasoline Storage Act 430 ILCS 15/1
et seq.
(2000).
See
415 ILCS
5/57.9 (2000).
The Gasoline Storage Act (430 ILCS 15/1
et seq
. (2000)) provides for registration of
underground storage tanks meeting various criteria. Section 4(b)(1)(A) of the Gasoline Storage
Act 430 ILCS 15/4(b)(1)(A) (2000). Section 4(b) of the Gasoline Storage Act 430 ILCS 15/4(b)
(2000) requires that the owner “shall register the tank with the” OSFM. Section 7(b) of the
Gasoline Storage Act 430 ILCS 15/7(b) (2000) provides that:
The State Fire Marshal may suspend or revoke the registration of any person who
has violated the rules of the State Fire Marshal after notice and opportunity for an
Administrative hearing which shall be governed by the Administrative Procedure
Act [5 ILCS 100/1-1
et seq
. (2000)]. Any appeal from such suspension or
revocation shall be to the circuit court of the county in which the hearing was held
and be governed by the Administrative Review Law [735 ILCS 5/3-101
et seq.
(2000)]. 430 ILCS 15/7(b) (2000).
STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is appropriate when the pleadings, depositions, admissions on file,
and affidavits disclose that there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483,
693 N.E.2d 358, 370 (1998). In ruling on a motion for summary judgment, the Board “must
consider the pleadings, depositions, and affidavits strictly against the movant and in favor of the
opposing party.”
Id
. Summary judgment “is a drastic means of disposing of litigation,” and
therefore it should be granted only when the movant’s right to the relief “is clear and free from
doubt.”
Id
, citing Purtill v. Hess, 111 Ill. 2d 299, 240, 489 N.E.2d 867, 871 (1986). However, a
party opposing a motion for summary judgment may not rest on its pleadings, but must “present
1
The record contains conflicting dates regarding the actual removal of the Tanks 1 and 2. The
record indicates that removal occurred either in the spring of 1985 (
see
R. at 4.) or May of 1986
(
see
Pet. Exh. C.). The actual date of removal is not a material fact for the resolution of this
matter.
3
a factual basis which would arguably entitle [it] to a judgment.” Gauthier v. Westfall, 266 Ill.
App. 3d 213, 219, 639 N.E.2d 994, 999 (2d Dist. 1994).
DISCUSSION
The following discussion will briefly summarize the arguments of the parties and then
state the Board’s findings on this case.
OSFM Arguments
OSFM asserts that Tanks 1 and 2 are not eligible for reimbursement because the tanks are
no longer registered. Mot. at 5. OSFM points out that the Illinois Environmental Protection
Agency and the OSFM jointly administer the Underground Storage Tank Program but the
responsibilities are not identical. Mot. at 4, citing 430 ILCS 15/4(a) (2000) and Farrales v.
OSFM, PCB 97-186 (May 7, 1998). OSFM argues that eligibility determinations are appealable
to the Board but not the registration decision. Mot. at 4. OSFM maintains that the Board has
consistently refused to review OSFM registration decisions. Mot. at 4. OSFM also argues that
the Board has recognized the OSFM’s authority to deregister tanks on a number of occasions and
cites to several Board cases and OK Trucking Com. v. Armstead, 274 Ill. App. 3d 376, 653
N.E.2d 863 (1st Dist. 1995). Mot. at 6.
In this case OSFM asserts that the record is clear that Vogue Tyre received an
administrative order in 1993 stating that Tanks 1 and 2 were no longer registerable. Mot. at 5.
Vogue Tyre did not appeal that order.
Id
. OSFM argues that because registration is a
prerequisite to eligibility to access the UST Fund, petitioner is not eligible to access the UST
Fund as a matter of law. Mot. at 6.
Vogue Tyre Arguments
Vogue Tyre asserts that the sole basis for the OSFM’s denial of eligibility “lies in its
deregistration” of Tanks 1 and 2. Resp. at 6. Vogue Tyre asserts that OSFM cannot deregister
tanks “without impinging upon a vested right” because OSFM cannot deregister tanks without
retroactively applying a statute.
Id
.
Vogue Tyre further argues that OK Trucking Com. v. Armstead is distinguishable
because in that case the tanks did not meet the definition of underground storage tank when
registration was sought. Resp. at 4. Vogue Tyre asserts that in this case the tanks were in the
ground at the time of registrations.
Id
. Vogue Tyre maintains that the facts of this case are more
analogous to ChemRex, Inc. v. IPCB, 257 Ill.App.3d 274, 628 N.E.2d 963 (1st Dist 1993)
wherein the tank owner was denied eligibility because of subsequent amendments to the
Environmental Protection Act (Act) (415 ILCS 5/1
et seq.
(2000)
amended by
P.A. 92-0574, eff.
June 26, 2002). Resp. at 5-6. The court found that ChemRex had a vested right to access the
UST Fund and the amendment to the Act could not be applied retroactively. Vogue Tyre argues
that the tanks were registered and fees paid in accordance with the statute at the time and thus
pursuant to ChemRex the tanks cannot be deregistered. Resp. at 5.
4
Finding
The Board finds that there are no issues of material fact and judgment may be granted as
a matter of law. Therefore, the Board finds that summary judgment is appropriate. The sole
issue is whether the OSFM appropriately denied eligibility to access the UST Fund by Vogue
Tyre because Tanks 1 and 2 were deregistered.
Section 4 of the Gasoline Storage Act provides that underground storage tanks may be
registered with the OSFM. 430 ILCS 15/4 (2000). The OSFM is also charged with the
responsibility of determining eligibility for access to the UST fund.
See
415 ILCS 5/57.9(c)
(2000). Pursuant to the Act, decisions by the OSFM regarding eligibility are appealed to the
Board.
Id
. However, decisions regarding registration are appealable to the circuit court under
the Administrative Review Law (735 ILCS 5/3-101
et seq
. (2000)).
See
430 ILCS 15/7 (2000).
Thus, as the Board has consistently held, the Board is not authorized to review OSFM’s decision
regarding registration of underground storage tanks.
See
Farrales v. OSFM, PCB 97-186
(May 7, 1998); Divane Brothers Electric Co. v. IEPA, PCB 93-105 (November 4, 1993); Village
of Lincolnwood v. IEPA, PCB 91-83 (June 2, 1992).
OSFM has denied Vogue Tyre eligibility to access the UST fund because the tanks at
issue were deregistered. In the response to the motion for summary judgment, Vogue Tyre
argues at length that the tanks could not be deregistered. The Board does not review registration
decisions by the OSFM.
Thus, the facts clearly establish that the tanks were not registered at the time that Vogue
Tyre sought access to the UST Fund. Registration of tanks is a prerequisite to accessing the UST
Fund.
See
415 ILCS 5/57.9(a)(4) (2000). Authority to register tanks is vested in the OSFM by
the legislature. Section 4 of the Gasoline Storage Act (430 ILCS 15/4 (2000)). Therefore, the
denial of eligibility was appropriate and the Board affirms the decision by the OSFM.
CONCLUSION
The Board finds that there are no issues of material fact and summary judgment is
appropriate. Based on the record, the Board finds that OSFM is entitled to judgment as a matter
of law and the Board grants OSFM’s motion for summary judgment. The Board affirms
OSFM’s February 1, 1995, decision denying access to the UST fund by Vogue Tyre.
This opinion constitutes the Board’s findings of fact and conclusions of law.
ORDER
The Board affirms the Office of State Fire Marshal’s denial of eligibility to access the
Underground Storage Tank Fund by Vogue Trye & Rubber Company for the facility located at
1401 Golf Road, Skokie.
IT IS SO ORDERED.
5
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2000);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on December 5, 2002, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
